Imagine you are a summer intern at a prestigious law firm in Washington, D.C. which often acts as outside counsel to a number of high profile political figures throughout the United States. In particular, you have been assigned to the Civil Rights and Civil Liberties division of the firm. It is your responsibility to draft memos advising clients of the history and current state of civil rights and civil liberties case law, as well as provide the firm’s disposition on the case. Your clients have specifically asked you to evaluate their chances of succeeding should they decide to appeal to the United States Supreme Court, and as such, you must advise them on whether or not they are likely to succeed in their proposed lawsuits, and whether or not the existing case law supports the outcome they hope for.
Below you will find three prompts. For this exam, you will select two of the three prompts, and write a short, persuasive legal memo advising your client of the firm’s evaluation of the likelihood the client would succeed in court. Whether you write in defense of the client’s stance, or not, is up to you, but you are expected to defend your stance with case law from this course. In order to receive full marks on this exam, it is not sufficient to summarize the facts and events of the cases you have read about; you must be able to identify the key legal principles articulated in the readings and explain how they might affect future cases.
Each prompt is followed with two or three readings from the course that you must include in order to do well on the exam. Discussing each of these cases, however, is not enough to earn you full marks for each response: you must also identify and discuss all other relevant cases. The listed readings are there merely to get you started. You may consider using additional readings from your text if you wish. All outside sources must be approved for use by the instructor prior to the deadline for the assignment. Please be sure to cite all of your sources. More detailed formatting requirements may be found following the prompts.
Prompt 1:
On June 30, 2017, the Texas Supreme Court threw out a lower court ruling that held that spouses of gay and lesbian public employees were entitled to the same government-subsidized marriage benefits available to spouses of opposite-sex public employees. The Court remanded the case back to the trial court, and ordered the Court to reconsider its ruling in light of the United States Supreme Court ruling in Obergefell v. Hodges, which the Texas Supreme Court says did not fully consider whether or not states and municipalities were required to provide the same benefits to all public employees’ spouses.
This case was brought by two Houston taxpayers who argue that the City of Houston’s benefit policy, enacted in 2013 by former mayor Annise Parker, violated the state Defense of Marriage Act, which prohibited same-sex marriages in the state. The taxpayer-plaintiffs in this case (Pidgeon v. Houston) argue that while Obergefell struck down the provisions of Texas law that prohibited same-sex marriages, Obergefell did not state whether or not states are required to offer equal benefits to all spouses of public employees.
At a previous hearing, Douglas Alexander, the lawyer for the City of Houston, argued that Obergefell requires all marriages must be equally regarded under the Obergefell decision, but the lawyer challenging the law, Jonathan Mitchell, argues that while marriage may be a fundamental right, the legal benefits associated with marriage are not, and the state may decide to withhold some or all benefits from some couples.
Sylvester Turner, the current mayor of Houston, has hired your firm to evaluate whether or not he should appeal the summary ruling of the Texas Supreme Court to the Supreme Court of the United States. In particular, he asks that you summarize the relevant case law and advise his office on whether or not Obergefell v. Hodges and other cases require same-sex couples be afforded the same marriage-related benefits available to opposite-sex Texans.
Minimum cases to include in your discussion:
Obergefell v. Hodges
United States v. Windsor
Romer v. Evans
Prompt 2:
On June 26, 2017, the Supreme Court of the United States declined to hear an appeal challenging a California law restricting concealed carry permits to individuals who can demonstrate good cause, pass a training course, and are of “good moral character.” The state law allows counties to define “good cause” on their own, and San Diego County requires that applicants for concealed carry licenses demonstrate “a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way." San Diego County further specifies that “simply fearing for one’s personal safety alone is not considered good cause,” and firearms activists argue that this amounts to a near complete ban on the public’s right to carry concealed firearms.
The Ninth Circuit Court of Appeals, in a 7-4 ruling, has stated that the Second Amendment “does not preserve or protect a right of a member of the general public to carry concealed firearms in public” because a historical analysis shows that concealed weapons were banned in the Anglo legal tradition since at least 1541, and the English Bill of Rights of 1689 only protected the rights of Protestants to have arms “allowed by law,” which did not include concealed weapons. Furthermore, the Ninth Circuit concluded the fact state courts, with near universality, ruled that bans on concealed weapons were consistent with the Second Amendment and their state constitutions. The Ninth Circuit declined to answer whether or not California could ban the open carrying of firearms in public, arguing that the previous Supreme Court rulings have not addressed this issue.
Despite the decision by the Supreme Court to not hear this case, the plaintiff Edward Peruta is considering asking the Supreme Court to reconsider its decision to decline to hear the case. As part of this process, he decided to hire your firm to reevaluate his arguments in hopes that a more persuasive argument might win the Court’s favor. Compose a short legal memo advising Mr. Peruta about the current state of Second Amendment jurisprudence and whether or not regulations prohibiting the carrying of firearms is consistent with the Second Amendment. In particular, be sure to distinguish between the open carry and concealed carry questions in your memo, and evaluate whether or not either, neither, or both may be restricted by the states.
Minimum cases to consider:
District of Columbia v. Heller
McDonald v. Chicago
Prompt 3:
Donald Trump has been President of the United States for over a year. Throughout his campaign for the Republican nomination, the general election, and his young presidency, Trump has been critical of media coverage of him, his campaign, and his administration. In fact, he has routinely taken to tweeting about the “FAKE NEWS” and its campaign against him, routinely lashing out at prominent outlets like CNN and the The New York Times. On February 26, 2016 he said “I’m going to open up our libel laws, so when they write purposely negative and false articles, we can sue them and win lots of money.” More recently, he tweeted (on March 30, 2017) “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?”
Currently, there is no federal libel statute (Congress has not passed a libel law), as libel has traditionally been legislated by the states. That is not to say, however, that there is not federal libel case law (as you have read throughout this course, the Supreme Court has issued rulings on the constitutionality of state libel laws).
Key legal advisors to the president have hired your law firm to advise on crafting a potential new federal libel law that Trump hopes to see Congress adopt before the end of his first year in office. These advisors have asked that you write a legal memo outlining the current state of libel case law, and advise, in general, on the constitutionality of a potential piece of anti-libel legislation. In particular, they would like to know how a libel law might pass constitutional review by the Supreme Court and what exceptions the law may need to have for creative content (as opposed to a news report).
Minimum Cases to consider:
New York Times Co. v. Sullivan
Hustler v. Falwell